Category: Immigration Trends

Subsections 87.1(2)(b) and (c) of the Immigration and Refugee Protection Regulations set out the job duties that applicants must perform in order to meet the requirements of having experience in an eligible NOC.

Subsection 87.1(2)(b) provides that an applicant must have performed the “actions described in the lead statement for the occupation as set out [in the NOC]”, while subsection 87.1(2)(c) provides that an applicant also must have performed a “substantial number of the main duties of the occupation as set out in the NOC, including all of the essential duties.”

In Benoit v. Canada (Citizenship and Immigration), 2013 FC 185, the Court allowed the appeal where an officer rejected an application because the applicant did not perform two of the eight main duties for NOC 6211. The Court stated:

The officer was therefore required to determine if Ms. Benoit “performed a substantial number of the main duties.” However, the officer’s decision as disclosed by the CAIPS notes is merely the following: “Duties listed in job letter do not match duties in NOC description; ordering and scheduling is done by manager with PA’s assistance.” “Ordering” and “scheduling” are no more than mere components of the main duties listed in NOC 6211. Thus, it is not clear if the officer at any point turned his or her mind to the real question, which was whether – on the whole – the duties were a substantial match.[1]

Another case worth noting is Ye v. Canada (Citizenship and Immigration Canada), 2012 FC 652. There, an officer refused an application under NOC 6221 because the officer felt that NOC 6421 was more appropriate. The officer did this not withstanding that NOC 6221 contained the following example titles “technical support specialist”,

As I have previously written in this blog, there is an increasing number of judicial review applications being filed against Labour Market Impact Assessment (“LMIA”) refusals. There is also accordingly a growing jurisprudence on what constitutes the “fettering of discretion” in a LMIA assessment. Those who have experience submitting LMIA applications will know that this is not surprising.

Paturel International Company v. Canada (Employment and Social Development), 2016 FC 541 (“Paturel“)

In Paturel, an officer with the Department of Employment and Social Development (“ESDC“) refused an LMIA application simply because the employer’s job offer did not have a wage that met or exceeded the median wage on ESDC’s Working in Canada website. The Federal Court stated that:

While the officer has broad discretion to rely on the data that he considered to be most representative of the prevailing wage in the region, I find that the officer’s sole reliance on EI data amounted to a fettering of his discretion.

Justice O’Reilly went on to note that:

Canadian immigration legislation does not stipulate that a failure to meet the prevailing wage, alone, would be sufficient to defeat an employer’s application; and

Because the employer had provided evidence that the Working in Canada website was inaccurate, it was unreasonable for the officer to nonetheless rely on it and to ignore the additional information.

One of the requirements to being a sponsor in both the Family Class and the Spouse or Common-Law Partner in Canada Class is that the sponsor must on the day that the application is submitted and until the application is assessed have a minimum necessary income.

For most types of family sponsorships, the income must be equal to the minimum necessary income, which is statutorily defined as being equal to Statistics Canada Low Income Cutoff (“LICO“). The current LICO requirements are as follows:

Size of Family Unit
Minimum necessary income

1 person (the sponsor)
$24,600

2 persons
$30,625

3 persons
$37,650

4 persons
$45,712

5 persons
$51,846

6 persons
$58,473

7 persons
$65,101

More than 7 persons, for each additional person, add
$6,628

For sponsors seeking to sponsor their parents and/or grandparents, the income must be equal to the minimum necessary income plus 30% for each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application. The current requirements are as follows:

Federal Income Table for Parents and Grandparents Sponsorship

Size of Family Unit
Minimum Income
2015
Minimum Income
2014
Minimum Income
2013

2 persons
$38,618
$38,272
$37,708

3 persons
$47,476
$47,051
$46,354

4 persons
$57,642
$57,125
$56,280

5 persons
$65,377
$64,791
$63,833

6 persons
$73,733
$73,072
$71,991

7 persons
$82,091
$81,355
$80,153

If more than 7 persons, for each additional person, add
$8,358
$8,271
$8,148

Canadians seeking to sponsor their spouses or common-law partners do not need to have a minimum necessary income.

Excluded from these amounts include, amongst other things, any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits.

Looking Beyond the Notices of Assessment

Visa officers must accept Canada Revenue Agency Notices of Assessment as proof of income when a sponsorship application is filed.

Sharalyn Jordan is an Assistant Professor in the Faculty of Education at Simon Fraser University. She works with with community agencies that support LGBTQ and refugee mental health as they develop and assess their counselling practices and programs.

In this episode we discuss how to overcome systemic barriers in LGBTQ asylum claims. Much of this episode is dedicated to establishing how LGBTQ asylum claimants must prove their sexual identity during their refugee claim. How does someone from a country where being gay is illegal and who has been a closeted homosexual for their entire life prove that they are gay? What do Immigration and Refugee Board members expect? How can counsel assist? Finally, we discuss whether LGBTQ asylum claimants should even be required to prove their sexual orientation as part of their asylum claim.

Topics

1:13 – Sharalyn provides an overview of the history of how Canada’s immigration and refugee system has restricted the ability of LGBT people to relocate to Canada.

5:12 – Canada’s immigration and refugee system often requires that people prove their sexual orientation. How can LGBT people prove their orientation?

20:00 – Are there circumstances in which an Immigration and Refugee Board member can reject a person’s claimed identity?

34:30 – What degree of membership in a LGBT community is required or the norm for an LGBT refugee claimant?

36:40 – What is the standard of persecution in the LGBT context?

44:10 – What changes does Sharalyn think need to be made to Canada’s refugee system?

53:30 – Steven expresses concerns with the idea of not questioning one’s identity, and has his concerns answered.

Post Show Notes

After listening to this episode one might want to see examples of decisions where the Refugee Protection Division engaged in reasoning that was not sensitive to LGBT issues.

This is the third time that I am weighing the good, the bad and the ugly about a Canadian immigration minister. It is in some ways the most difficult time, given that McCallum’s tenure was so short. My first assessment of an immigration minister was about Jason Kenney, who remains Canada’s longest-serving immigration minister, having held the role for 1,719 days. His successor, Chris Alexander, whom I also wrote about, led Canada’s immigration department for 826 days. John McCallum was Canada’s immigration minister for only 433 days.

To some extent, the busy nature of McCallum’s tenure made up for its short duration. He was the first immigration minister in Trudeau’s Liberal majority government, which assumed power after an election campaign in which refugee and citizenship issues were prominent. Because McCallum had also been the Liberal immigration critic during Canada’s previous Conservative government, and had also served as a cabinet minister in previous Liberal governments, he was able to hit the ground running in implementing his mandate. Nonetheless, the comparative lack of material to write about was noticeable as I prepared this article.

The Good

John McCallum’s biggest accomplishment as Canada’s immigration minister, and the one that he will definitely be most remembered for, was presiding over the resettlement of over 39,000 Syrian refugees in Canada. Given the numerous significant challenges associated with such a grand endeavour, it is doubtful that someone without McCallum’s previous cabinet experience would have been able to achieve what he did in such a short period.

One of the confusing aspects of a judicial review practice is determining how many applications are needed.

In Chambers v. Canada (Citizenship and Immigration), for example, the applicant filed one judicial review to seek review of i) an immigration Officer’s decision to prepare a report pursuant to subsection 44(1) of the Immigration and Refugee Protection Act (the “IRPA“) to the Minister of Public Safety and Emergency Preparedness’ delegate, (ii) the decision of the Minister’s delegate pursuant subsection 44(2) of the IRPA to refer the applicant, to an admissibility hearing before the Immigration Division of the Immigration and Refugee Board, and (iii) the decision of the Immigration and Refugee Board to order the applicant’s removal from Canada.

The Department of Justice argued that this was improper. However, Justice Bell disagreed, writing that:

The Applicant counters that this same issue was raised in Clare v Minister of Citizenship and Immigration, 2016 FC 545, [2016] FCJ no 513 [Clare]. In Clare, O’Reilly, J. disagreed with the Minister’s contention. He concluded that, “[w]hile it was open to Mr. Clare to seek judicial review of those other decisions, it was not necessary to do so in order to challenge the [Immigration Division’s] decision on admissibility”. While O’Reilly, J. acknowledged that in some cases applicants had challenged multiple decisions through separate applications, he did not interpret them as “requiring applicants to do so in order to challenge the ID’s decision on admissibility”.

Mr. Chambers contends this issue has already been disposed of by the judge who granted leave. I agree. Leave was granted on the application as filed, without any limitation. The question is therefore moot. However, by way of obiter, I would state that I agree with the approach adopted by O’Reilly,

Efrat Arbel is Assistant Professor at the Allard School of Law at the University of British Columbia. She is an executive member of the Canadian Association of Refugee Lawyers. A list of Dr. Arbel’s recent publications can be found here.

During this podcast we talk about three areas that Dr. Arbel has recently focused her research on. These include the distinction between physical borders and legal borders in the refugee context, how interdiction works, and the Safe Third Country Agreement.

The Safe Third Country Agreement between Canada and the United States requires that persons seeking refugee protection must make a claim in the first country they arrive in unless they qualify for an exception to the Agreement. In other words, an asylum seeker who wishes to seek refugee status in Canada will typically be denied the ability to do so if they attempt to enter Canada by land from the United States.

This episode was recorded before President Trump’s recent Executive Order imposed a moratorium on asylum claims in the United States. President Trump’s decision has only intensified and magnified many of the issues that Dr. Arbel discusses in this podcast.

1:43 – Dr. Arbel explains different concepts of what a country’s border is, and the distinction between the physical border and the legal border.

Please note that individuals in the following circumstances are not eligible under the Strategic Recruitment Stream:

Refugee claimants, or individuals involved in a federal appeal or removal process;

Live-in caregivers currently living in Canada;

Temporary foreign workers working and residing in a province other than Alberta; and

International students studying in Canada and doing co-op work placements or internships as part of their study program

Skilled Worker Category

In order to be eligible under the Skilled Worker Category, the employer must:

Be incorporated or registered as a business in Alberta by or under an act of the legislature of a province or the Parliament of Canada and operating as a business that has an established production capability, plant or place of business in Alberta;

Provide a job offer to the Candidate for permanent, full-time employment in a skilled occupation;

Provide a job offer to the Candidate that meets Alberta’s employment and wage standards and does not conflict with existing collective bargaining agreements;

The Honourable Alan S. Diner is a judge with the Federal Court of Canada. Prior to his appointment, Justice Diner headed Baker & McKenzie LLP’s immigration practice. He was also involved with managing the establishment and implementation of Ontario’s Provincial Nominee Program for the Ministry of Citizenship and Immigration.

We are grateful to Justice Diner for the time that he took in preparing for this podcast about tips and best practices in appearing before the Federal Court of Canada, including in providing a customised powerpoint, which can be found on our website at http://www.borderlines.ca. As Justice Diner notes, many of the tips and strategies contained in this episode are applicable beyond judicial review, and will be beneficial to anyone preparing written submissions or making oral presentations.

A review of what we discussed is as follows:

1:18 – Justice Diner describes his history going from being an immigrant in Canada to leading a corporate immigration law practice to becoming a judge with the Federal Court of Canada.

14:30 – We discuss how the practice of immigration law is changing as larger firms and global accounting firms enter the practice area.

18:30 – Justice Diner provides his first three tips to lawyers appearing in Federal Court, which are to treat everyone with respect, to prepare your case and arguments properly, and to respect timelines.

28:00 – How many arguments should someone make in a judicial review application? If one thinks that an immigration officer made 10 mistakes, should the lawyer in a judicial review application list all 10?

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DISCLAIMER

Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.